Federal deportation proceedings for incarcerated migrants and immigration defendants continue nationwide despite pleas from defense attorneys, human rights groups and some judges who fear that in-person court hearings and conditions of confinement inside immigration jails could facilitate the rapid spread of the coronavirus that causes COVID-19.
The Trump administration’s decision to continue pursuing deportation orders and immigration charges against jailed immigrants comes as an unprecedented coalition of federal immigration trial lawyers, defense attorneys and judges demands that all federal immigration courts be closed until the coronavirus is contained.
Meanwhile, defense attorneys and hundreds of faith-based organizations and human and civil rights groups are calling on Immigration and Customs Enforcement (ICE) to release all people from the nation’s vast network of immigration jails. On Thursday, 775 nongovernmental organizations sent a letter to Matthew T. Albence, ICE’s acting director, calling for the agency to immediately release all people incarcerated in immigration jails, cease all local enforcement operations and eliminate ICE office check-ins and mandatory court appearances for immigrants, regardless of their legal status.
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If ICE refuses to release its prisoners, the groups wrote, the agency should at minimum commit to placing anyone who tests positive for COVID-19 at a hospital rather than quarantine them in a prison or jail, and waive all costs for soap, hand sanitizer and other hygiene products. Jails and prisons run by ICE and its contractors are known to charge incarcerated immigrants for such basic necessities.
While the Justice Department agreed this week to postpone all immigration court hearings for defendants who are not incarcerated, only 11 of the nation’s 68 immigration courts were closed as of Thursday morning and hearings for incarcerated immigrants continue, according to the Department of Justice. The federal immigration court in Salt Lake City opened only a few hours late on Wednesday after an earthquake rocked the city and surrounding areas.
“The immigration courts need to close, period,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, during a call with reporters on Wednesday.
Homero López, the executive director of Immigration Services and Legal Advocacy and an immigration defense attorney in Louisiana, said ICE should use its legal authority to release as many immigration prisoners as possible. This would allow many people to return to their families during a global crisis and potentially prevent another health care disaster inside ICE jails.
“The vast majority of people in detention do not need to be detained, that is discretionary on ICE’s behalf, so obviously we are asking that they be released,” López said in an interview. “Very few are under mandatory detention order, so ICE doesn’t have to do this. Prisons are breeding grounds for disease.”
López is very busy. As Truthout has reported, Louisiana has vastly expanded its capacity to incarcerate migrants who arrived at the southern border as well as immigrant workers swept up in ICE raids under President Trump’s brutal crackdown. The number of deportations ordered by the federal immigration courts in Louisiana has nearly doubled since 2017, the year Trump took office. Last year, immigration courts in Louisiana issued deportation orders for more than 11,000 people — including at least one individual suffering from a life-threatening medical condition.
“In Louisiana, the substantial majority of [detained immigrants] are people who showed up at the border and are eligible for parole and can be released, and ICE is choosing not to release them,” López said, adding that there are also mechanisms for releasing those held under mandatory detention orders that ICE could choose to use.
ICE reports that there are no confirmed cases of coronavirus in the immigration prisons and jails run by the agency and its contractors, and administrators are taking a number of precautionary measures. However, testing is still extremely limited nationwide. And last year, ICE quarantined thousands of migrants after an outbreak of mumps swept through its jails.
López said immigration court in New Orleans is only open to receive legal filings and is not conducting hearings, but two courts serving ICE jails in central Louisiana are still conducting physical, in-person hearings with incarcerated immigrants. Other ICE jails conduct hearings where incarcerated immigrants appear before a remote judge on a video screen, but judges at several locations are still requiring defense attorneys to appear with their clients in person.
While most of the confirmed coronavirus cases in Louisiana are concentrated in New Orleans and other urban areas hours from ICE’s remote jails, López said many defense attorneys travel long distances from New Orleans or large cities like New York or Miami to represent their clients. At least one of the state’s immigration jails is screening attorneys for COVID-19 symptoms as they enter the facility to attend remote video hearings, but López remains concerned because coronavirus can be transmitted by individuals who are not experiencing symptoms.
“It’s not a great setup,” López said. “And using the example with the mumps situation, I don’t have a lot of trust that they are going to handle this well.”
On Wednesday, a coalition of unions representing immigration judges, prosecutors and defense attorneys held a press conference and called on the Justice Department to temporarily shut down all immigration courts until coronavirus testing becomes widely available and public health experts better understand how to prevent transmission. Judges and media outlets were reporting that attorneys, court staff and immigrants — including those living in squalid border camps due to Trump’s “remain in Mexico” policy — were crowded together in courtrooms, cramped waiting rooms and security lines.
Overnight, the Justice Department announced it would close several courtrooms in cities hard-hit by coronavirus and postponed all hearings for “non-detained” individuals. However, according to López and other sources, the deportation machine continues to churn for those held in ICE custody. In contrast with the immigration system, courtrooms at all levels of the judicial system across the country are now closed — including the Supreme Court.
U.S. immigration courts are not independent. They are run by the Department of Justice, the same federal agency responsible for prosecuting alleged violations of immigration law. On Wednesday, Tabaddor described the Trump administration’s decision to keep immigration courtrooms open as the coronavirus crisis unfolds as politically driven. When asked by Truthout whether she meant that the administration is continuing to keep immigration courts open in order to advance Trump’s political agenda, Tabaddor said even chief and supervisory judges are saying their “hands are tied” by higher-ups in the Justice Department.
“What we know for sure is the decision-making authority is not within the chief immigration judges or the people who are the most knowledgeable about the court functions,” Tabaddor said. “All of the decisions are being made way above, and everything is being very carefully orchestrated, and there is no transparency to it.”